PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1811
GAVIN CLASS,
Plaintiff - Appellee,
v.
TOWSON UNIVERSITY,
Defendant - Appellant.
------------------------------------
AMERICAN MEDICAL SOCIETY FOR SPORTS MEDICINE; MARYLAND
ATHLETIC TRAINERS ASSOCIATION; NATIONAL ATHLETIC TRAINERS’
ASSOCIATION, INC.; NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:15-cv-01544-RDB)
Argued: September 16, 2015 Decided: November 13, 2015
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Reversed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Keenan joined. Judge Wynn wrote an
opinion concurring in part and dissenting in part.
ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellant. Steven M.
Klepper, KRAMON & GRAHAM, P.A., Baltimore, Maryland, for
Appellee. ON BRIEF: Brian E. Frosh, Attorney General of
Maryland, Kathleen E. Wherthey, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellant. Andrew M. Dansicker, LAW OFFICE OF ANDREW M.
DANSICKER, LLC, Hunt Valley, Maryland, for Appellee. Mitchell
Y. Mirviss, VENABLE LLP, Baltimore, Maryland, for Amici American
Medical Society for Sports Medicine, Maryland Athletic Trainers
Association, and National Athletic Trainers’ Association, Inc.
Philip S. Goldberg, William C. Martucci, Washington, D.C.,
William C. Odle, Corby W. Jones, SHOOK, HARDY & BACON, L.L.P.,
Kansas City, Missouri, for Amicus National Collegiate Athletic
Association.
2
NIEMEYER, Circuit Judge:
On August 12, 2013, as the temperature in Baltimore reached
91°F, Gavin Class, a Towson University student, collapsed with
exertional heatstroke while practicing as a member of the Towson
University football team. He was transported to the Shock
Trauma Unit at the University of Maryland Medical Center in
Baltimore, where he remained in a coma for nine days and almost
died. He suffered multi-organ failure, requiring a liver
transplant and numerous additional surgeries.
Following a protracted recovery involving a high level of
perseverance, Class returned to classes at Towson University in
January 2014 and thereafter pursued his plan to return to NCAA
Division I football. Applying its “Return-to-Play Policy,”
however, Towson University refused to clear Class to play
because the Team Physician, a board-certified sports medicine
doctor, concluded that allowing Class to participate in the
football program presented an unacceptable risk of serious
reinjury or death. The Return-to-Play Policy gave Towson
University’s Team Physician “final authority” over the issue.
Class commenced this action against Towson University,
alleging that its decision to exclude him from the football
program amounted to a violation of Title II of the Americans
with Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act. He alleged that his inability to regulate
3
his body temperature and his susceptibility to heatstroke
constituted a “disability,” as defined by those Acts, and that
he was qualified to play intercollegiate football if Towson
University agreed to his proposed accommodations. Following a
one-day bench trial, the district court agreed with Class,
concluding that Class’ proposed accommodations were reasonable
and that Towson University had violated the ADA and the
Rehabilitation Act. The court entered judgment against Towson
University, issuing a permanent injunction prohibiting it from
violating those Acts.
On appeal, Towson University contends that the district
court erred in concluding (1) that Class was disabled as the
term is defined by the Acts and (2) that Class was “otherwise
qualified” for the football program with the accommodations he
proposed. It also challenges several evidentiary rulings made
by the district court during trial.
For the reasons given herein, we reverse the district
court’s judgment, vacating its injunction. While we recognize
that the question of whether Class had a disability, as defined
by the Acts, is a close one, we nonetheless conclude that Class
was not “otherwise qualified” to participate fully in Towson
University’s football program because the University reasonably
applied its Return-to-Play Policy. Giving deference to Towson
University’s judgment, as we are required to do, we uphold its
4
determination. In view of these conclusions, we do not reach
Towson University’s challenge to the district court’s
evidentiary rulings.
I
After Class played NCAA Division III football at the
University of Rochester for two years, he transferred to Towson
University to play Division I football. And, in early August
2013, Towson University’s football coach informed Class that he
had won a starting position as an offensive guard. Two days
later, however, on August 12, 2013, Class collapsed during
drills from an exertional heatstroke and was taken to the Shock
Trauma Unit at the University of Maryland Medical Center.
Class’ heatstroke resulted in multi-organ failure, including
liver failure, necessitating a liver transplant. According to
Dr. William R. Hutson, Class’ treating physician, without the
transplant, “there is no question that [Class] would have died.”
Class was in a coma for nine days and endured more than a dozen
other surgical procedures. He was hospitalized for nearly two
months, receiving intensive medical care that included
chemotherapy to treat post-transplant complications.
Class still suffers from the effects of his medical trauma.
As a result of the liver transplant, he has a weakened abdominal
wall, which places his internal organs at risk of injury. He
5
must take immunosuppressive medications, which increase his risk
of infection. And he is at a heightened risk of subsequent
heatstroke. Class’ physicians have also cautioned that any
future surgeries would be more complicated.
After leaving the hospital, Class began a lengthy and
grueling recovery process. Initially unable to stand, he
progressed over a six-month period from using a walker to
beginning to run. In January 2014, he resumed classes as a
student at Towson University and began training in pursuit of
his hope of returning to playing football. While conditioning
on his own, Class expressed his wish to rejoin the team for the
2015-16 football season. As with any student-athlete seeking to
return to play from injury, Towson University’s athletic staff
directed Class’ request to play to the Team Physician, Dr. Kari
E. Kindschi.
Dr. Kindschi was the Medical Director of the Arnold Palmer
SportsHealth Center for Sports Injuries at MedStar Union
Memorial Hospital in Baltimore. Under a preexisting contract,
Dr. Kindschi served as the Medical Director of Athletics at
Towson University and the head Team Physician for the
University’s 19 Division I teams, including its football team.
Four other MedStar physicians were also engaged to provide
services to Towson University’s student-athletes, and those
physicians oversaw the three athletic trainers assigned to the
6
football team. In the fall of 2014, Dr. Kindschi and the
physicians on the MedStar medical review team, all of whom were
board certified in sports medicine, unanimously concluded that
Class could not safely participate fully in Towson University’s
football program. They reached this conclusion after Dr.
Kindschi conducted a physical examination of Class; reviewed his
medical records and his medical history; reviewed the results of
a heat tolerance test conducted on August 21, 2014; consulted
Class’ liver-transplant physicians; and reviewed medical
literature. Dr. Kindschi did, however, clear Class to
participate in “no contact conditioning in [a] cool
environment.”
The August 2014 heat tolerance test was conducted by the
Korey Stringer Institute, a center at the University of
Connecticut that researches issues related to heatstroke and
heat illness. The Institute was founded in the wake of the
death of Korey Stringer, an All-Pro offensive lineman in the
National Football League who died after suffering a heatstroke.
The Institute conducted a “low intensity” heat tolerance test on
Class and found that, in an environment of 104°F with 40%
humidity, Class was “un-able to sustain low intensity exercise
in a hot environment for 70 minutes.” While the test required
that Class maintain a rectal temperature of 101.3°F or lower for
7
two hours, he exceeded that temperature just over halfway into
the two-hour test.
After Class continued to train, Towson University again
engaged the Korey Stringer Institute to conduct another “low
intensity” heat tolerance test on Class on February 6, 2015,
using the same conditions and standards as were used in the
first test. This time, Class completed the test, having had a
rectal temperature of no higher than 101.2°F. The Institute
concluded:
At this point we suggest that you only exercise in
cool environments ranging from low to high intensity
(including football practices), and only low to
moderate intensity in warmer environments. We
strongly suggest having a second test done prior to
any intense conditioning that is done in a warm to hot
environment. This would be done in order to determine
your body’s response to high exercise intensity
coupled with heat exposure, most likely before
returning to practice in August.
The report included restrictions and conditions for Class’
continued progress.
Thereafter, Dr. Kindschi again refused to clear Class for
participation in the football program because he had not shown
that he had “sufficient heat tolerance to handle competitive
football practices, including scrimmages, and play outdoors in
seasonal heat.” She made her judgment after again reviewing
Class’ medical records, including both the Institute’s August
2014 and February 2015 tests, as well as a letter from Dr.
8
Hutson, the lead treating physician on his liver-transplant
team, concluding that Class was “at acceptable risk to play
collegiate football . . . with appropriate padding and
protection.” She also consulted with other medical
professionals at MedStar Union Memorial Hospital and with
representatives of Towson University’s Athletic Department. Dr.
Kindschi noted that the test conditions for the February 2015
heat tolerance test did not adequately mimic the conditions that
Class “would face playing competitive football” and that Class
had not passed any test wearing the specialized padding
recommended to protect his liver and the standard football gear,
including the pads and helmet required for playing football.
Consistent with NCAA requirements and national best
practices, Towson University applied a written Return-to-Play
Policy, which provided that the University’s Team Physician has
the final and autonomous authority in deciding if and when an
injured student-athlete may return to practice or competition.
The Policy provided in relevant part:
A Towson University Team Physician or his/her
designee, in consultation with a Towson University
certified athletic trainer, has the final authority in
deciding if and when an injured student-athlete may
return to practice or competition. A student-
athlete’s private physician DOES NOT have any
jurisdiction as to the participation status of the
student-athlete. Any student-athlete seen by a
physician other than the Towson University Team
Physician must return to the Sports medicine clinic
9
for follow-up and final clearance prior to active
participation status.
(Emphasis added).
After Class obtained counsel, who made a formal demand for
Class to be fully reinstated in the football program, Towson
University formally responded with a letter dated May 4, 2015,
stating that, based on its Return-to-Play Policy, it was denying
Class’ request. The letter stated:
[T]he University, with the advice of the MedStar
medical professionals in its athletic department, has
determined that while Mr. Class has made admirable
strides in his recovery, he is unable to return to
playing football safely and that no reasonable
accommodation can be made to adequately protect him
from potentially devastating health effects.
* * *
The sports medicine professionals believe that the
risk of serious injury or death as a result of another
heat stroke is too great to clear Mr. Class to play.
As I am sure you are aware, Mr. Class’s prior heat
stroke led to a cascade of devastating complications,
including multi-organ failure, which resulted not only
in the need for a liver transplant, but also in a very
complicated hospital course, several additional
surgeries due to wound infections, and post-transplant
lymphoproliferative disease that required
chemotherapy.
Most importantly, Mr. Class remains at risk for
another heat stroke. His prior severe heat stroke is
a significant risk factor for future heat illness.
While some of his current transplant-related medical
risks can be minimized with measures such as abdominal
padding and medications, Mr. Class’s risk of heat
stroke is not capable of adequate prevention with any
reasonable restriction or accommodation. Routine
temperature monitoring alone would not adequately
provide for his safety, and the sports medicine
professionals cannot fashion a reasonable or practical
10
precaution that would adequately protect Mr. Class
from another serious heat related illness. The
individuals involved in this decision agree that it
would be irresponsible to permit Mr. Class to be
exposed to another potentially catastrophic event.
A few weeks later, Class commenced this action against
Towson University, alleging that its decision to exclude him
from the football program violated the ADA and the
Rehabilitation Act and seeking an injunction “to allow [him] to
fully participate” in the program. In his complaint, Class
alleged that he was disabled in that his “inability to regulate
his body temperature and susceptibility to heat stroke
substantially limit major life activities, including regulating
body temperature, walking, standing and running, when he
experiences a heat stroke,” but that he could fully return to
football with reasonable accommodations. He alleged that he
undertook his recovery process “to become the first person to
come back from exertional heatstroke and a liver transplant to
play football.” He proposed various accommodations, based on
the Korey Stringer Institute’s suggestions, which, he contended,
were “reasonable accommodations which could be performed by
Towson with minimal cost or disruption to the football program.”
He claimed that Towson University’s refusal to allow him to
participate in football with these accommodations discriminated
against him by reason of his disability.
11
Following the commencement of this action and Class’
continued training, the Korey Stringer Institute conducted a
third heat tolerance test of Class on June 19, 2015. This was a
“moderate intensity” test that required Class, in an environment
of 104°F with 40% humidity, to maintain a rectal temperature of
103.1°F or lower for a period of one hour. The Institute
reported that Class was able to maintain the specified
temperature for 50 minutes, but, unlike the prior test reports,
the June 2015 report did not specify what rectal temperature was
reached at any point during the test. Rather, it stated:
While there was not a plateau in your rectal body
temperature, your rate of rise was low enough to allow
you to complete 50 minutes of exercise with an
expected body temperature for individuals exercising
in the heat. The only limiting factor to completing
60 minutes of exercise was muscular fatigue, which is
expected for your fitness, sport and physical make up.
The report concluded, “Given your previous tests it is very
encouraging to see that you have been able to make predictable
and significant improvements in you ability to handle exercise
in the heat. You have made sizeable gains, and it is important
to maintain the gains you have made and continue to spend time
maintaining and improving your fitness.” The report stated that
Class could “fully participate with regularly scheduled football
practices,” subject to five conditions -- which it “strongly
recommended.” As detailed further in the report, the five
conditions were that Class:
12
(1) [c]ontinue to perform conditioning workouts
outside;
(2) [c]ontinue to follow the mandated NCAA heat
acclimatization guidelines;
(3) [m]onitor [his] body temperature when performing
new/unique exercise or conditioning sessions;
(4) [m]onitor [his] fluid needs and match his fluid
losses; and
(5) [conduct] [a]ll exercise progression . . . at the
discretion and direct observation of a medical
professional.
At the bench trial in this case, the Institute’s Chief
Operating Officer, Dr. Douglas J. Casa, a certified athletic
trainer who holds a Ph.D. in exercise physiology, testified that
the temperature monitoring condition (condition 3) in the June
2015 test report could be accomplished by using a “CorTemp”
system, which would require Class to ingest a small electronic
device that would track his internal body temperature and
communicate the readings through a low-frequency radio waves to
a nearby handheld monitor. As Dr. Casa explained, the system
would require that the monitor be positioned near Class for 3 to
5 seconds every 5 to 10 minutes, which would provide data with
sufficient frequency to allow Class to cease physical activity
before his internal temperature reached the dangerous level at
which a heatstroke could occur.
Dr. Kindschi testified, however, that the Institute’s June
2015 test did not alter her professional judgment as it did not
13
clear Class “to return to football” but only to “a progression
of activities” that would require monitoring and a follow-up.
She expressed concern about data omitted from the Institute’s
June report that appeared in the prior two reports. Finally,
she continued to note that the June test was not conducted under
conditions that mimicked actual football practice and games and
in an environment reflecting Baltimore’s heat and humidity.
Following the one-day bench trial, the district court found
that Class had a disability within the meaning of the ADA and
the Rehabilitation Act because “both [his status] as a
transplant recipient and victim of heat stroke . . . seriously
affected major life activities.” 1 “[A]lternatively,” the court
held, “Class clearly qualifie[d] as an individual with a record
of a protected disability under 42 U.S.C. § 12102(1)(B).” The
court determined that Towson University had discriminated
against Class on the basis of this disability by refusing to
provide the requested accommodations, particularly the abdominal
padding and internal temperature monitoring, which the court
found to be reasonable. By judgment dated July 17, 2015, the
1The district court’s conclusion that Class was disabled
“as a transplant recipient” is not an issue presented to us. In
his complaint, Class alleged only that his “inability to
regulate his body temperature and susceptibility to heat stroke”
characterized his disability. Moreover, Towson University has
acknowledged that only the “heatstroke and the related issues
with that” motivated its decision not to clear Class for
participation in its football program.
14
court permanently enjoined Towson University “from violating
[Class’] rights under the Americans with Disabilities Act and
Section 504 of the Rehabilitation [Act] by prohibiting him from
participating in the University’s football program resulting
from medical concerns related to his status as a transplant
recipient and heat stroke victim.”
From the judgment entered, Towson University filed this
appeal. By order dated July 28, 2015, we granted Towson
University’s motion to stay the district court’s judgment, and
on August 6, 2015, we granted Class’ motion to order an
expedited appellate schedule.
II
Towson University contends first that the district court
erred in finding that Class, as a “victim of heat stroke,” is
disabled within the meaning of the ADA. 2 Recognizing that
“disability,” as defined by the Act, means a “physical or mental
impairment that substantially limits one or more major life
2
Class brought this action under both the ADA and the
Rehabilitation Act. For convenience of discussion, however, we
discuss the issues only under the ADA, as the standards that we
apply are the same for both Acts. See Halpern v. Wake Forest
Univ. Health Sciences, 669 F.3d 454, 461 (4th Cir. 2012) (citing
Constantine v. Rectors & Visitors of George Mason Univ., 411
F.3d 474, 498 (4th Cir. 2005)). While the Acts differ with
respect to causation, see Baird ex. rel. Baird v. Rose, 192 F.3d
462, 468-70 (4th Cir. 1999), that is not at issue here. Under
the Rehabilitation Act, the plaintiff must also establish that
the defendant received federal funds, see 29 U.S.C. § 794(a),
but that also is not at issue here.
15
activities,” 42 U.S.C. § 12102(1)(A), Towson University argues
that Class did not “present any evidence that his impaired
ability to thermoregulate affects a major life activity or that
thermoregulation itself is a major bodily function.” It reasons
that Class’ increased risk of reoccurrence of heatstroke as a
result of his original heatstroke “does not establish that he
has a disability because that increased risk is just that -- a
risk; it does not substantially limit either a ‘major life
activity’ or ‘the operation of a major bodily function.’”
While Towson University acknowledges that an impairment
that is episodic or in remission would qualify as a disability
if it substantially limits a major life activity “when active,”
42 U.S.C. § 12102(4)(D), the University contends that Class’
limitations on thermoregulation are not episodic or in
remission. It asserts that “Mr. Class makes no claim that he
still suffers any such impairments or that such impairments are
likely to return. . . . The only activity as to which Mr. Class
claims any current, actual or potential impairment is the one at
heart of this suit: playing intercollegiate football.” And
that, it suggests, is clearly not a major life activity. See,
e.g., Knapp v. Northwestern Univ., 101 F.3d 473, 480 (7th Cir.
1996) (“Playing intercollegiate basketball obviously is not in
and of itself a major life activity, as it is not a basic
16
function of life on the same level as walking, breathing, and
speaking”).
Class contends that he has never asserted that playing
football is a major life activity. Rather, he contends that the
question is whether his impairment, “when active,” substantially
limits a major life activity, such as walking, caring for
himself, or lifting objects. He reasons:
The evidence at trial indicated that Class may be at
an increased risk of a reoccurrence of heat stroke as
a result of his original injury -- or in other words,
that Class’ disabilities are currently in remission.
If Class had a recurrence of heat stroke -- the very
thing the accommodations are designed to prevent -- he
would be unable to engage in “caring for oneself,
performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” 42 U.S.C. §
12102(2)(A). That is all the law now requires.
(Internal quotation marks and citation omitted).
The statutory requirements for showing disability are not
disputed. An individual has a disability under the ADA when he
“(A) [has] a physical or mental impairment that substantially
limits one or more major life activities of such individual; (B)
[has] a record of such an impairment; or (C) [is] regarded as
having such an impairment.” 42 U.S.C. § 12102(1). Class rests
his claims on subsections (A) and (B).
A “major life activity” is in turn defined to include (1)
basic tasks that are part of everyday living, such as “caring
17
for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, [and] lifting,” 42 U.S.C.
§ 12102(2)(A) (providing a nonexhaustive list); and (2) the
“operation of a major bodily function,” id. § 12102(2)(B). In
response to the Supreme Court’s strict construction of this
provision, which had indicated that a temporary impairment could
not be a disability, see Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 198-99 (2002), Congress enacted the ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553.
That Act provides that the term “disability” must be “construed
in favor of broad coverage of individuals under [the ADA], to
the maximum extent permitted by [the ADA].” 42 U.S.C.
§ 12102(4)(A). Overturning Toyota, the ADA Amendments Act also
provides that “[a]n impairment that is episodic or in remission
is a disability if it would substantially limit a major life
activity when active.” Id. § 12102(4)(D) (emphasis added).
Relying on the ADA Amendments Act, Class argues that
playing football could incite his impaired ability to
thermoregulate, activating a condition that is otherwise
dormant. Of course, when active, the condition would clearly
limit the major life activities of walking, lifting, and caring
for oneself, as occurred during Class’ 2013 exertional
heatstroke.
18
The unanswered question in Class’ argument is whether the
statutory term “when active” must imply an activation of the
impairment prompted by normal life conditions. In this case,
Class’ limitation on thermoregulation can become active only
under the extreme exertion of a prolonged and demanding football
practice or game in high heat and humidity. In such conditions,
anyone could suffer heatstroke. If “when active” were to
include the possibility of activation under any condition,
however extreme, it would encompass a broad range of limitations
or impairments that would drastically expand the scope of
“disability” under the ADA. For example, with such a definition
of disability, the inability of one mountain climber to
oxygenate as well as another climber at very high altitudes,
such as during an ascent of Mt. Everest, could be considered a
disability.
While a closer analysis might find it difficult to extend
the definition of disability to cover a condition that becomes
active only under extreme conditions, far beyond the scope of
normal daily living, we need not engage in that novel analysis
in this case in light of our following conclusion that Class is
not “otherwise qualified” to participate in Towson University’s
football program with accommodations. For the same reason, we
need not address whether Class has “a record of such an
impairment.” 42 U.S.C. § 12102(1)(B).
19
III
As noted, Class must also carry the burden of showing that
he is “otherwise qualified” to participate in Towson
University’s football program by establishing “(1) that he could
satisfy the essential eligibility requirements of the program .
. . and (2) if not, whether ‘any reasonable accommodation by
[Towson University] would enable’ [him] to meet these
requirements.” Halpern v. Wake Forest Univ. Health Sciences,
669 F.3d at 454, 462 (4th Cir. 2012) (quoting Tyndall v. Nat’l
Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994). In the
context of postsecondary education, a disabled person is
qualified if he shows that he “meets the academic and technical
standards requisite to admission or participation in the
[school’s] education program or activity.” 45 C.F.R.
§ 84.3(l)(3); see also 42 U.S.C. § 12131(2); Knapp, 101 F.3d at
482. “The term ‘technical standards’ refers to all nonacademic
admissions criteria that are essential to participation in the
program in question.” Southeastern Cmty. Coll. v. Davis, 442
U.S. 397, 406 (1979) (quoting an explanatory note to the
original regulations). And a nonacademic eligibility criterion
is essential if it “‘bear[s] more than a marginal relationship
to the [program] at issue.’” Halpern, 669 F.3d at 462 (quoting
Tyndall, 31 F.3d at 213).
20
In determining whether an educational institution’s
eligibility requirement is essential and whether it has been
met, we accord a measure of deference to the school’s
professional judgment. See Halpern, 669 F.3d at 462-63 (citing
Supreme Court cases “[i]n the context of due-process challenges”
and several cases in which “our sister circuits have
overwhelmingly extended some level of deference to schools’
professional judgments regarding students’ qualifications when
addressing disability discrimination claims”); see also Davis v.
Univ. of N.C., 263 F.3d 95, 102 (4th Cir. 2001) (explaining in
dicta that in the context of academic eligibility requirements
and disability challenges, this court “generally accord[s] great
deference to a school’s determination of the qualifications of a
hopeful student”). Of course, in according deference, we still
must take special care to ensure that eligibility requirements
do not “disguise truly discriminatory requirements.” Halpern,
669 F.3d at 463 (internal quotation marks and citation omitted).
Towson University contends that satisfying its Return-to-
Play Policy, which requires clearance by the Team Physician, is
an essential eligibility requirement for participation in its
football program (as well as other athletic programs),
reflecting the need that participation in athletics be conducted
in a healthy and safe manner. Applying such a health-and-safety
requirement does not seem to be controversial in this case or in
21
many others. See, e.g., Knapp, 101 F.3d at 483 (“[A]lthough
blanket exclusions are generally unacceptable, legitimate
physical requirements are proper” to ensure the health and
safety of student-athletes (citing Southeastern Cmty. Coll., 442
U.S. at 407)); cf. Halpern, 669 F.3d at 463 (holding that
professionalism was an essential requirement of a medical school
program in part because “inappropriate and disruptive behavior
by physicians increases adverse patient outcomes”); Doe v. Univ.
of Md. Med. Sys. Corp., 50 F.3d 1261, 1265-66 (4th Cir. 1995)
(determining, based on Sch. Bd. of Nassau Cnty. v. Arline, 480
U.S. 273 (1987), that an HIV-positive medical resident was not
otherwise qualified because he posed a significant risk of
transmitting the infectious disease to others). Analogously,
the Supreme Court has held that employers may consider the risk
a potential employee’s disability poses to himself in
determining whether he is qualified for a job. See Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 84-86 (2002).
Unlike with many other educational activities, physical
risk is an inherent element of athletic programs. The NCAA, as
amicus, explains that decisions about the impact of health and
safety risks on players “are made daily” concerning a host of
“medical conditions[,] such as concussion, cervical spine
trauma, cardiac arrest, knee injuries, and more.” Granting the
Team Physician final clearance authority, a policy that is
22
consistent with NCAA guidelines and national best practices, is
a fair and reasonable manner for Towson University to coordinate
these essential determinations for the unique and dynamic
medical profiles of its several hundred student-athletes. While
this policy does not completely safeguard against possible
discrimination, it helps to ensure that the physician’s ethical
and professional imperative to care for the best interests of
student-athletes trumps other university concerns or
motivations, including those that could be discriminatory. Cf.
Arline, 480 U.S. at 287-88 (explaining that an “otherwise
qualified” inquiry must be guided by “facts, based on reasonable
medical judgments given the state of medical knowledge, about .
. . the nature of the risk” posed by an individual’s
participation in the program).
Accordingly, we conclude that Towson University’s
requirement that a student-athlete obtain the Team Physician’s
clearance before returning from injury is legitimately an
essential eligibility requirement. Class does not appear to
dispute this. Nor does he contend that he is able, without
accommodation, to participate healthily and safely in the
football program. Rather, he contends that the Team Physician’s
decision to reject his proposed accommodations to allow him to
play football healthily and safely was unreasonable because, as
he argues:
23
[The Team Physician] has been practicing medicine for
five years and admittedly has no expertise (and
virtually no experience) in dealing with heat stroke.
She never explained why it would be unsafe for Class
to return to the football field. She merely stated
that she was concerned about his ability to
thermoregulate, that she was concerned that he had a
propensity for heat stroke, that any future heat
stroke could be catastrophic, and that she consulted
unidentified colleagues at MedStar (without claiming
any heat stroke expertise on their part). She
acknowledged that she was not aware of any scientific
literature or research that supported her opinion.
* * *
In other words, [the Team Physician’s] medical opinion
was based on her feelings, not on any medical or
scientific evidence.
The dispositive question, therefore, is whether the Team
Physician’s opinion was reasonable -- i.e., whether it was
“individualized, reasonably made, and based upon competent
medical evidence.” Knapp, 101 F.3d at 485. And in resolving
this question, we give the Team Physician’s decision -- and
derivatively, Towson University’s decision -- a measure of
deference. See Halpern, 669 F.3d at 462-63; Davis, 263 F.3d at
102; Knapp, 101 F.3d at 484; Doe, 50 F.3d at 1266. Nonetheless,
when considering whether the decision is reasonable, we must be
satisfied that it was consistent with the University’s statutory
obligations to provide reasonable accommodations and not a
pretext for illegal discrimination. See Halpern, 669 F.3d at
463; Knapp, 101 F.3d at 483. Stated otherwise, in evaluating
reasonableness, we must determine whether the Team Physician’s
24
decision and, derivatively, Towson University’s decision (1) was
a good-faith application of its policy to protect the health and
safety of student-athletes, (2) was in compliance with the
University’s statutory obligations to provide reasonable
accommodations, and (3) was not a disguise for discrimination
under the ADA or the Rehabilitation Act. Because the record
here indicates that Dr. Kindschi and Towson University applied
the Return-to-Play Policy in good-faith and that the decision
not to fully reinstate Class was not simply a pretext for
unlawful discrimination, we focus on whether Dr. Kindschi and
Towson University reasonably considered Class’ proposed
accommodations.
Class proposes six accommodations, which, he argues, would
satisfy Towson University’s need for his healthy and safe
participation in the football program and thus render him
“qualified” under Towson University’s Return-to-Play Policy.
Specifically, he proposes the use of padding to protect his
abdominal wall and the implementation of the five conditions
listed in the Korey Stringer Institute’s June 2015 test report,
two of which are challenged by Towson University as
unreasonable: (1) the condition that Class’ internal
temperature be closely monitored and (2) the condition that all
exercise be done at the discretion and under the direct
observation of a medical professional. In particular, Towson
25
University contends that these proposed accommodations (1) would
impose undue financial and administrative burdens; (2) would not
effectively reduce Class’ risk of heatstroke; and (3) would
require fundamental changes in the nature of the football
program. The relevant cases indeed note that an accommodation
is unreasonable if it “imposes undue financial and
administrative burdens,” Halpern, 669 F.3d at 464 (quoting
Arline, 408 U.S. at 287 n.17); or if there is a high likelihood
that the accommodation would not effectively allow the disabled
individual to meet the eligibility requirements, Halpern, 669
F.3d at 465 (holding that “the indefinite duration and uncertain
likelihood of success of [plaintiff’s] proposed accommodation
renders it unreasonable”); or if it “requires ‘a fundamental
alteration in the nature of [the] program,’” Arline, 480 U.S. at
287 n.17 (alteration in original) (quoting Southeastern Cmty.
Coll., 442 U.S. at 410 (explaining that an accommodation whereby
a nursing student would take only academic classes and no
clinical courses would fundamentally alter the nurse training
program)).
Towson University’s contention that the requested
accommodations would impose an undue financial and
administrative burden is not well developed in the record,
although the University did present evidence that its football
trainers are not qualified to implement the CorTemp temperature
26
monitoring system, suggesting that Class’ proposed accommodation
would require the expense of training them and even hiring
additional personnel. Moreover, as a matter of possible
administrative burden, we have difficulty understanding how the
temperature monitoring system Class proposed could function in
the context of a football game, particularly for a starting
offensive lineman, such as Class. During football games,
athletic trainers, such as the trainer who would be designated
to monitor Class every 5 to 10 minutes under his proposed
accommodations, are not allowed to participate in football
huddles unless a timeout has been called. Moreover, portions of
football games are often played without huddles, and offensive
drives routinely take more than 5 to 10 minutes on a real-time
clock. Indeed, they often take more than 5 to 10 minutes on a
game clock. And, if a reading indicated an at-risk internal
body temperature, Class would have to be removed from the game
for an indefinite period of time sufficient to let him cool
down. The coach would be denied his starting offensive guard
and Class would be denied his wish to play. Nonetheless, we
cannot conclude on this sparse record that the district court
erred in rejecting Towson University’s challenge on the ground
that the accommodation would impose undue financial and
administrative burdens.
27
But Towson University’s contention that the requested
accommodations are not reasonable because they (1) would not
effectively satisfy Towson University’s safety concerns and (2)
would require fundamental changes in the nature of its football
program has merit. We address each reason in order.
A
On the issue of whether the requested accommodations would
effectively eliminate the risk of a second catastrophic
heatstroke, Dr. Kindschi concluded that Class’ full
participation in the football program, even with the proposed
accommodations, would unacceptably expose him to the risk of
another heatstroke that could be fatal. It is not our role to
agree or disagree with Dr. Kindschi’s opinion or to weigh
whether her evaluation is more persuasive than another doctor’s.
Rather, we are to determine whether her professional judgment
was supported by the record. We conclude that it was.
First, Class himself claims that he suffers from an
“inability to regulate his body temperature and susceptibility
to heat stroke.” Similarly, the district court found that “the
evidence at trial indicated that Class may be at an increased
risk of a reoccurrence of heat stroke as a result of his
original injury.” (Emphasis added).
28
Second, the Korey Stringer Institute’s test reports
indicate that the heatstroke risk really has not been
demonstrably abated. The first report shows that Class failed
to thermoregulate adequately during a “low intensity” heat
tolerance test. The second and third reports show that he
passed, although he did so with several substantial caveats and
conditions related to his inability to thermoregulate
sufficiently. His second test was another “low intensity” test,
and Class’ performance prompted the Institute to recommend that
Class limit any high intensity exercise (including football) to
“cool environments.” It “strongly suggest[ed]” that Class
undergo a third test before engaging in “intense conditioning
that is done in a warm to hot environment.” In his third and
final test, which was of “moderate intensity,” Class was able to
perform for only 50 minutes of the scheduled 60-minute test.
The Institute reported that Class had “made sizeable gains,” but
that it was important that, while engaging in any intense
exercise, he be directly supervised by a “medical professional”
and have his internal temperature closely monitored.
Third, all of the Korey Stringer Institute tests were
conducted while Class was wearing shorts and a “light T-shirt”
and not while wearing standard football gear, including a
uniform, football pads, and a helmet, and the specialized
protective padding required to protect his liver. Dr. Casa, the
29
Director of the Institute, conceded that test conditions did not
replicate football conditions. And he also conceded that the
relative humidity under which the tests were conducted did not
replicate Baltimore’s average humidity in August -- the tests
were conducted in 40% humidity while Baltimore’s average August
humidity was shown to be around 70%.
Fourth, Class’ August 2013 heatstroke left him with a
compromised physical condition, including a thinner abdominal
wall, an ongoing requirement to take medications, and an
increased susceptibility to a future fatal heatstroke. Relying
on Class’ medical records, Dr. Kindschi described the medical
reasons for Class’ compromised condition:
His initial heatstroke was nearly fatal. He had
multi-organ failure and dysfunction which led to
fulminant necrosis of his liver, requiring transplant.
He had a very complicated postoperative course that
included multiple surgeries for wound dehiscences and
infections. He had kidney failure that required
intervention. He had a hemothorax. He had
persistently elevated liver enzymes after discharge.
And he had post-transplant lymphoproliferative disease
which required chemotherapy.
She concluded by stating that Class’ prior heatstroke was “a
risk factor for future heat illness,” a conclusion that was not
disputed and that the district court found.
On this record, it is clear that Dr. Kindschi’s judgment
that Class could not play football without the risk of serious
injury or death was well supported. That conclusion leaves only
30
the question of whether Dr. Kindschi’s opinion that the
temperature monitoring accommodation would not sufficiently
reduce this risk was reasonable.
Dr. Kindschi considered the proposed accommodation to
monitor Class’ internal body temperature throughout his football
activity and concluded that it would not adequately meet the
needs of health and safety. She explained that she had concerns
“about the reliability of where the [electronic heat] sensor
[was] in the GI system,” noting that digestion is “a fairly
individualized and even day-to-day process.” She explained that
such unreliability would be compounded by the difficulty “of
figur[ing] out two-a-day practices with one CorTemp sensor.”
She stated that she would not feel comfortable having Towson
University’s trainers monitor Class’ internal temperature
without a physician present, stating that such a role was
“beyond their scope.” And she concluded that the monitoring
program, even if well implemented, would not eliminate the
“meaningful risk of catastrophic reinjury.” Dr. Kindschi stated
that, in making her decision, she had considered the serious
risk of injury or death in the context of the potential problems
in administering the monitoring system, conceding that the
decision was “very difficult” and was made only after
“considerable thought.”
31
Dr. Kindschi’s concerns were supported by Dr. Casa’s
testimony, which explained in detail how the monitoring system
would be carried out. After explaining that Class’ internal
body temperature would be monitored by an electronic sensor that
Class ingested, emitting a low-level electronic signal from his
intestinal tract, he described how a monitor would have to be
placed near Class to receive the signal and obtain the readings.
The person holding the monitor would have to hold it near Class
for 3 to 5 seconds every 5 to 10 minutes, requiring either that
the person holding the monitor go onto the football field into
the huddle or that Class go to the sidelines. As Dr. Casa
explained:
So just during normal, when he’s flipping out of
certain drills, you know, if he’s rotating around, a
manager can be sitting there where the person’s
holding the water bottles; and he could check him as
people rotate through. If there’s specific, you know,
designated rest breaks, then obviously someone can
just come behind him.
Dr. Casa also testified to caveats that reiterated Dr.
Kindschi’s concerns. As he testified:
Now, there are a few caveats. You have to ingest [the
electronic sensor] a certain number of hours
beforehand so that it’s out of the stomach and into
the intestines to allow for more accurate measures.
You obviously have to have a new pill when the other
pill has been passed. You have to have the receiver
and a small amount of training to make sure you can
utilize the device.
* * *
32
You’d probably have a manager or someone assigned to
checking the temperature every time there’s a break or
every time it’s convenient, every five or ten minutes,
and then the specific instructions from the athletic
trainer that every time a measure is taken, that is
communicated to the athletic trainer. . . . I mean my
particular recommendations would be if they reached
103[°F] I would give them a break, use particular body-
cooling strategies and use hydration. And then when
it went back down under 102[°F], I would let ‘em return
to activity.
Finally, and perhaps most importantly, the internal
temperature monitoring could not ensure that Class would not
suffer from another heatstroke while playing or practicing. The
monitoring would only facilitate the discretionary decision of
whether it was necessary to remove him from the game or
practice. This would not guarantee that his removal would, in
fact, be sufficiently early. In any event, removing him from
the activity would deny Class the very participation that he
seeks by the accommodation. He could not play as the coach
might need if playing were to raise his internal temperature to
a dangerous level, which itself would be an individualized
threshold, would not be known with any certainty, and would be
predicted only as a discretionary medical judgment that could
prove to be wrong.
On this record, Class’ claim that Dr. Kindschi’s decision
had no medical support is simply untenable. While he may
disagree with her judgment, even his expert’s testimony
purporting to support his return, at least to football
33
“practice,” was filled with serious caveats and precautions.
And no one disputed that the monitoring effort would be
conducted against the continuous and heightened risk of
heatstroke and the reality that numerous athletes had died or
suffered serious injury from it -- including Class himself.
Indeed, Dr. Casa conceded that over a recent 9-year period, 29
athletes had died from heatstroke in the United States.
As noted, the standard for assessing Dr. Kindschi’s
judgment not to clear Class for return to football under Towson
University’s Return-to-Play Policy is not whether we share that
judgment or whether she had a better judgment than some other
doctor. Rather, the standard is whether her judgment was
reasonable -- i.e., whether it was individualized to Class, was
reasonably made, and was based on competent medical evidence.
When applying that standard, we conclude that Dr. Kindschi’s
decision was supported by legitimate health and safety concerns,
manifested by the medical records, which were not eliminated by
the proposed monitoring system. Therefore, we conclude that her
decision was not unreasonable.
Courts are “particularly ill-equipped” to evaluate the
medical ineffectiveness of proposed accommodations in
safeguarding against significant health risks. Davis, 263 F.3d
at 102 (quoting Bd. of Curators of the Univ. of Mo. v. Horowitz,
435 U.S. 78, 92 (1978)) (explaining that courts generally accord
34
deference to a school’s judgment regarding admissions
qualifications). In this case, the district court did not show
deference to Towson University but engaged in its own evaluation
of the effectiveness of the proposed accommodations. In doing
so, it applied the wrong standard and analysis. See Halpern,
669 F.3d 463 (noting that courts are “at a comparative
disadvantage in determining” technical eligibility standards);
Knapp, 101 F.3d at 485 (explaining that “it will be the rare
case regarding participation in athletics where a court may
substitute its judgment for that of the school’s team
physicians”); Doe, 50 F.3d at 1266 (explaining that the court
was “reluctant” to “substitute [its] judgment for that of [the
university],” despite potentially conflicting recommendations
from the Centers for Disease Control and Prevention). At
bottom, we agree with the Seventh Circuit’s articulation in
Knapp regarding the courts’ role in such issues. As the Knapp
court stated:
On the same facts, another team physician at another
university, reviewing the same medical history,
physical evaluation, and medical recommendations,
might reasonably decide that [Class] met the physical
qualifications for playing on an intercollegiate
[football] team. Simply put, all universities need
not evaluate risk the same way. What we say in this
case is that if substantial evidence supports the
decision-maker . . . that decision must be respected.
101 F.3d at 485.
35
B
While it is sufficient in evaluating the reasonableness of
a proposed accommodation to rely on only one factor, Towson
University also contends that the temperature monitoring and
medical supervision proposed by Class would fundamentally alter
the nature of its football program. We agree.
Class’ proposed accommodations would require Towson
University’s Team Physician to allow Class to play football and
supervise his participation when, in her medical judgment, she
has concluded that he should not be playing football under the
circumstances. The relevant accommodation, as stated by the
Korey Stringer Institute’s report, requires that “[a]ll exercise
progression should be done at the discretion and direct
observation of a medical professional.” (Emphasis added). Yet
it would not be possible to implement such an accommodation
without upending the critical role of the Team Physician and her
subordinates and impinging on the ongoing professional medical
discretion she is retained to exercise. Because the Team
Physician’s role is an “essential aspect” of the football
program for many of the same reasons the University’s health-
and-safety clearance requirement is an essential eligibility
requirement, Class’ proposed modification would constitute a
fundamental alteration in the nature of the program. See
Halpern, 669 F.3d at 464 (citing PGA Tour, Inc. v. Martin, 532
36
U.S. 661, 682-83 (2001) (examining a rule’s purpose and
importance to the program to determine if it is an essential
aspect, such that a change to the rule would fundamentally alter
the program)).
For these reasons, we find that the Team Physician’s
judgment and, derivatively, Towson University’s judgment to
reject Class’ proposed accommodations were not unreasonable in
the context of the risks.
IV
Gavin Class is a courageous man of substantial character,
which is much to be admired. He understandably has been seeking
to validate his determination and perseverance to return to
intercollegiate football and “to become the first person to come
back from exertional heatstroke and a liver transplant to play
football.” While we hold that Towson University acted
reasonably in response to the health risks posed by Class’ full
participation in its football program, we nonetheless believe
that Class has achieved a substantial victory with his
accomplishments. He can be proud to tell his story.
REVERSED
37
WYNN, Circuit Judge, concurring in part and dissenting in part:
Towson University (“Towson”) decided that Gavin Class, a
student who had suffered a serious heatstroke, could no longer
safely participate in its Division I football program. Class
challenged this decision under the Americans with Disabilities
Act (“ADA”) and the Rehabilitation Act. The key question we
must answer is what level of deference the district court should
have applied in evaluating whether Towson discriminated against
Class on account of his alleged disability.
The majority opinion and I agree that the district court
applied the wrong standard in evaluating Towson’s decision. The
Team Physician’s medical determination that Class faced too
great a risk of serious injury or death to fully participate in
Towson’s football program was entitled to some deference. We
all agree that the district court should have reviewed Dr.
Kindschi’s opinion to determine if it was individualized,
reasonably made, and based upon competent medical evidence. In
my view, however, the touchstone of this inquiry should be the
objective reasonableness of the university’s decision—not the
subjective good faith of the Team Physician, as the majority
opinion suggests.
Further, I cannot support applying the appropriate standard
for the first time here on appeal. Instead, the proper course
of action is to remand the case, so that the district court may
38
make factual findings in accordance with the correct standard of
deference. Therefore, I respectfully concur in part and dissent
in part.
I.
At the heart of this case is the appropriate level of
deference that we should accord to Towson’s decision that Class
could no longer safely participate in its football program. I
thus address that issue first.
Class’s claims arise under two similar provisions of law:
the ADA and the Rehabilitation Act. Under Title II of the ADA,
“no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity.” 42 U.S.C. § 12132. Similarly, Section 504 of
the Rehabilitation Act imposes the same prohibition on “any
program or activity receiving Federal financial assistance.” 29
U.S.C. § 794(a). 1
Under the ADA, a disabled person is otherwise qualified to
participate in a program if he is “an individual with a
disability who, with or without reasonable modifications to
rules, policies, or practices, . . . meets the essential
1 As the majority opinion notes, the ADA and the
Rehabilitation Act are essentially the same in all aspects
relevant to this opinion. See ante, at 15 n.2. Accordingly,
for the sake of simplicity, I refer solely to the ADA in some
portions of this opinion.
39
eligibility requirements for . . . participation in” that
program. 42 U.S.C. § 12131(2); see 45 C.F.R. § 84.3(l)(3), (4)
(stating a nearly identical standard applicable to
Rehabilitation Act claims).
In my view, the essential eligibility requirement at issue
here is the ability to play football without an unacceptable
risk to the player’s health and safety. See Doe v. Univ. of Md.
Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995) (“[A]n
individual is not otherwise qualified if he poses a significant
risk to the health or safety of others.”). I therefore disagree
with the majority opinion’s conclusion that “Towson University’s
requirement that a student-athlete obtain the Team Physician’s
clearance before returning from injury is legitimately an
essential eligibility requirement.” Ante, at 23. It is
inconsistent with the ADA to elevate the unilateral approval of
the entity accused of discrimination to the status of an
essential eligibility requirement, as the majority opinion does
here. 2 Dr. Kindschi determined whether Class met the pertinent
essential eligibility requirement—Class’s ability to play
2
For example, in Halpern v. Wake Forest University Health
Sciences, 669 F.3d 454, 463 (4th Cir. 2012), the Court found
that professionalism was an essential eligibility requirement
for participation in a medical school program. The Court,
however, did not frame the eligibility requirement as the
medical school’s decision that a student was professional, but
instead looked to whether the student in fact possessed that
trait.
40
football without an unacceptable risk to his health and safety;
her determination itself was not the essential eligibility
requirement. 3
With the appropriate essential eligibility requirement in
mind, I turn to the standard that the district court should have
applied in evaluating Dr. Kindschi’s opinion. My review of the
relevant ADA and Rehabilitation Act case law convinces me that
Dr. Kindschi’s opinion should have been reviewed for objective
reasonableness, in contrast to the majority opinion’s more
subjective approach.
The majority opinion relies heavily on Halpern, in which a
student with Attention Deficit Hyperactivity Disorder and an
anxiety disorder challenged his medical school’s decision to
dismiss him from the school for repeatedly exhibiting
unprofessional behavior. 669 F.3d at 456–57. In that case,
this Court afforded “great respect” to the school’s
“professional judgments” regarding the student’s qualifications
to continue in the Doctor of Medicine program. Id. at 463. In
doing so, we noted that in the due process context, “the Supreme
3
In fact, the majority opinion’s own analysis betrays its
claim that Dr. Kindschi’s approval was an essential requirement
for the program. Class admitted that Towson did not grant him
clearance to play. This admission alone would defeat his claim
if the clearance decision itself was an essential eligibility
requirement, as the majority opinion purports. The majority
opinion, however, did not end its analysis there—perhaps
realizing that such a circular requirement does not comport with
the ADA.
41
Court has held that a court should defer to a school’s
professional judgment regarding a student’s academic or
professional qualifications.” Id. at 462–63 (citing Regents of
the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985), and Bd.
of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 92
(1978)). This deference was warranted “because courts are
particularly ill-equipped to evaluate academic performance.”
Id. at 463 (quoting Davis v. Univ. of N.C., 263 F.3d 95, 102
(4th Cir. 2001)); see also Horowitz, 435 U.S. at 92.
The majority opinion cited Halpern throughout its opinion,
without recognizing that Halpern is readily distinguishable from
this case. Halpern involved a determination of academic
qualifications, which is different in kind from a determination
of physical qualifications. Academic eligibility is not
determined through science, but through individual judgments
that necessarily involve some level of subjectivity and
discretion. See Ewing, 474 U.S. at 225 n.11; Horowitz, 435 U.S.
at 90. Academic eligibility decisions are “not readily adapted
to the procedural tools of judicial or administrative
decisionmaking” because there are few objective standards for
the courts to apply. Horowitz, 435 U.S. at 90. In contrast,
courts can assess medical determinations with an objective test
that looks to the medical facts supporting the entity’s
42
decision. See Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 273,
288 (1987); Doe, 50 F.3d at 1265.
In Arline, for instance, the Supreme Court considered
whether a public school violated Section 504 of the
Rehabilitation Act—one of the same provisions relied upon by
Class—when it discharged a teacher who suffered from
tuberculosis. 480 U.S. at 275–76. The Court held that to
determine whether the teacher posed a significant risk to the
health and safety of others, the district court must make
[findings of] facts, based on reasonable medical
judgments given the state of medical knowledge, about
(a) the nature of the risk . . . , (b) the duration of
the risk . . . , (c) the severity of the risk . . .
and (d) the probabilities the disease will be
transmitted.
Id. at 288 (alteration in original). Such an inquiry is
essential to the Rehabilitation Act’s “goal of protecting
handicapped individuals from deprivations based on prejudice,
stereotypes, or unfounded fear.” Id. at 287.
Three years after the Supreme Court decided Arline,
Congress passed the ADA, which expressly provides that an
employer can decide that a disabled individual is unqualified if
he or she “pose[s] a direct threat to the health or safety of
other individuals in the workplace.” Americans with
Disabilities Act of 1990, Pub. L. No. 101-336, § 103(b), 104
Stat. 327, 334 (1990) (codified as amended at 42 U.S.C. §
43
12113(b)). Congress has incorporated similar “direct threat”
provisions in other sections of the ADA and in the
Rehabilitation Act. See 42 U.S.C. § 12182(b)(3) (applying to
places of public accommodation under Title III of the ADA); 29
U.S.C. § 705(20)(D) (excluding those who “constitute a direct
threat to the health or safety of other individuals” from the
definition of “individual with a disability” under the
Rehabilitation Act).
In a case arising out of the direct threat provision of
Title III of the ADA, Bragdon v. Abbott, 524 U.S. 624 (1998), a
dentist refused to provide his standard services to a patient
because she was infected with the human immunodeficiency virus.
Id. at 628–29. The Supreme Court considered whether it owed
deference to the dentist’s determination that the patient posed
a direct threat to his health and safety, particularly in light
of the fact that he was a health care professional. Id. at 648.
The Supreme Court held that it “should assess the objective
reasonableness of the views of health care professionals without
deferring to their individual judgments.” Id. at 650 (emphasis
added). The Court explained:
As a health care professional, petitioner had the duty
to assess the risk of infection based on the
objective, scientific information available to him and
others in his profession. His belief that a
significant risk existed, even if maintained in good
faith, would not relieve him from liability.
44
Id. at 649 (emphasis added).
In the employment context, a similar standard applies when
an employer decides whether a disabled employee poses a direct
threat to his or her own health and safety. See 29 C.F.R. §
1630.2(r). In such cases, the employer must perform an
individualized assessment of the employee’s ability to safely
perform the job, “based on a reasonable medical judgment that
relies on the most current medical knowledge and/or on the best
available objective evidence.” Id.; see also Chevron U.S.A.
Inc. v. Echazabal, 536 U.S. 73, 86 (2002) (applying this
standard). Several employment cases have reviewed medical
determinations for “objective reasonableness,” just as the
Supreme Court did in Bragdon. See, e.g., Rodriguez v. ConAgra
Grocery Prods. Co., 436 F.3d 468, 484 (5th Cir. 2006); Gillen v.
Fallon Ambulance Serv., Inc., 283 F.3d 11, 31–32 (1st Cir.
2002); Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th
Cir. 2000).
The Seventh Circuit applied a similar objective evidence
standard in Knapp v. Northwestern University, 101 F.3d 473, 485–
86 (7th Cir. 1996), a case on all fours with this one. In
Knapp, the Seventh Circuit considered whether Northwestern
University violated the Rehabilitation Act by banning a student
from playing varsity basketball because he had a potentially
fatal heart defect. Id. at 476. The Seventh Circuit held that
45
“medical determinations of this sort are best left to team
doctors and universities as long as they are made with reason
and rationality and with full regard to possible and reasonable
accommodations.” Id. at 484. The court explained that in cases
of this nature, “the court’s place is to ensure that the
exclusion or disqualification of an individual was
individualized, reasonably made, and based upon competent
medical evidence.” Id. at 485.
Notably, Northwestern University’s determination did not
need to be “the right decision” or the only reasonable
conclusion. Id. Indeed, physicians might reasonably reach
different medical conclusions, and “all universities need not
evaluate risk the same way.” Id. The Seventh Circuit simply
ensured that the university’s opinion was “based on objective
evidence,” id. at 486, with an eye to the Arline factors
regarding determinations made in medical risk cases, id. at 485
(quoting Arline, 480 U.S. at 287–88). 4
The Knapp court adopted the correct approach to eligibility
decisions in university athletics. The majority opinion
purports to adopt the Knapp standard, and to the extent that it
does, I concur. However, the majority opinion underemphasizes
the need for such decisions to be based on objective evidence
4
Knapp was decided before Bragdon and thus did not rely
upon Bragdon’s objective reasonableness language.
46
and supported by competent medical knowledge. Id. at 486; see
also Bragdon, 524 U.S. at 649–50. The majority opinion instead
considers whether Towson’s decision not to allow Class to play
football “was a good-faith application” of Towson’s Return-to-
Play policy, which implies that the subjective intent of the
Team Physician is a key factor. Ante, at 25. But just as the
Supreme Court made clear in Bragdon, subjective good faith will
not relieve Towson of liability if its decision was not
objectively reasonable. 524 U.S. at 649–50. Following the
guidance of the cases interpreting the direct threat provisions,
we should take a rigorous look at the medical basis and
objective reasonableness of Towson’s decision, in light of then-
current medical knowledge. See Echazabal, 536 U.S. at 86;
Bragdon, 524 U.S. at 649; Arline, 480 U.S. at 288.
Having an objective standard is particularly important to
avoid the paternalism toward disabled individuals that the ADA
is intended to combat. 42 U.S.C. § 12101(a)(5) (“[I]ndividuals
with disabilities continually encounter various forms of
discrimination, including . . . overprotective rules and
policies.”); Echazabal, 536 U.S. at 85 (“Congress had
paternalism in its sights when it passed the ADA.”).
Paternalism is particularly likely to emerge in questions
involving the health and safety of disabled individuals. While
universities might subjectively mean well when they find that it
47
is too risky for a disabled person to participate in athletics,
that good-faith intention could mask paternalism and stereotypes
about those with disabilities. As stated in Knapp, the law
“prohibits authorities from deciding without significant medical
support that certain activities are too risky for a disabled
person. Decisions of this sort cannot rest on paternalistic
concerns.” 101 F.3d at 485–86.
In sum, I agree with the majority opinion that Towson’s
decision should be accorded deference, as long as its conclusion
was reasonable, individualized, based on competent medical
knowledge, and consistent with Towson’s statutory duty to make
reasonable accommodations for disabled students. Such a review
requires the court to take a close look at the objective medical
evidence supporting the university’s views, and not just the
good-faith intention of the university medical staff. Deference
in this context is emphatically not a rubber stamp, but rather a
willingness to respect the university’s judgment if it is
medically and objectively reasonable.
II.
The majority opinion correctly concludes that the district
court failed to apply the correct standard. Instead of
assessing Dr. Kindschi’s opinion for objective reasonableness,
the district court weighed the testimony of Dr. Kindschi against
the testimony of Drs. Casa and Hutson, and found Class’s experts
48
to be more “persuasive.” Class v. Towson Univ., No. RDB-15-
1544, 2015 WL 4423501, at *8 (D. Md. July 17, 2015). In
substituting Towson’s judgment with its own, the district court
erred. The majority opinion chose to apply the deferential
standard to this case, for the first time, on appeal. I, on the
other hand, would remand the case to the district court.
When the district court applies the wrong legal standard,
the best course is generally to remand the case and allow “the
trier of fact to re-examine the record in light of the proper
legal standard.” Kelley v. S. Pac. Co., 419 U.S. 318, 332
(1974); see also Humphrey v. Humphrey, 434 F.3d 243, 247 (4th
Cir. 2006). Only when “the record permits only one resolution
of the factual issue” is remand unnecessary. Pullman-Standard
v. Swint, 456 U.S. 273, 292 (1982); see also Humphrey, 434 F.3d
at 248 (providing as an example that “an appellate court may
resolve the case without remanding if the evidence would
inevitably produce the same outcome under the correct
standard”). When this case is viewed in its entirety, the
record does not compel a conclusion either way regarding whether
Dr. Kindschi’s decision was individualized, reasonably made, and
based upon competent medical evidence. Remand is, thus, the
appropriate route to take.
49
In holding otherwise, the majority opinion bends key
aspects of the factual record. Two particular
mischaracterizations illustrate my concern.
First, the majority opinion mischaracterizes the results of
heat-tolerance testing conducted by the Korey Stringer Institute
(“Institute”). The majority opinion concludes that the
Institute’s “test reports indicate that the heatstroke risk
really has not been demonstrably abated” and cites the test
results as support for Dr. Kindschi’s decision not to allow
Class to return to Towson’s football program. Ante, at 29.
However, Dr. Casa, the head of the Institute and a leading
expert in heatstroke, looked at these same test results and
found that Class’s performance was “stellar” and “better than
almost any athlete [he] would even pull off the streets.” J.A.
302. Relying upon the test results, Dr. Casa concluded that
“without question” it was reasonably safe for Class to
participate in Towson’s football program. J.A. 297.
Towson sought out the Institute to measure Class’s ability
to thermoregulate, and Towson paid for the three tests that the
Institute conducted. The third test, performed in June 2015,
was the key test for assessing Class’s ability to return to
football, since the Institute designed the test to “mimic [the]
intensity of what would happen during a football practice” in a
hot environment. J.A. 302. By calculating the typical exertion
50
of a collegiate lineman during a preseason practice, the
Institute determined that Class would successfully complete the
test by running 1.6 miles in nineteen minutes. If Class wished
to do more than this, the test would continue for “up to a 1
hour duration.” J.A. 600. Class decisively passed this test
and “did demonstrate the ability to thermoregulate.” J.A. 601.
In fact, he was able to run 4.25 miles in fifty minutes, meaning
he completed “2.7 times (265%) the estimated workload necessary
for the defined passing requirements.” J.A. 601. The only
reason Class did not complete sixty minutes of exercise was
muscle fatigue, not a failure to thermoregulate. Nonetheless,
in summarizing the results of this test, the majority opinion
simply states that “Class was able to perform for only 50
minutes of the scheduled 60-minute test.” Ante, at 29. This
implies that Class failed the test—which he did not—and that he
failed because he could not thermoregulate—which is untrue.
Second, the majority opinion mischaracterizes the record to
create factual support for Dr. Kindschi’s conclusion that the
CorTemp system could not prevent Class from suffering another
heatstroke. Under the standard we adopt today, Dr. Kindschi’s
conclusion must be supported by “competent medical evidence.”
Ante, at 24 (quoting Knapp, 101 F.3d at 485). Dr. Kindschi
pointed to no literature supporting her medical conclusions,
including her claim that a player could still overheat while the
51
CorTemp system was in use. In fact, Dr. Casa testified that a
player’s internal temperature could only go up by about one
degree in a five to ten minute period, and Class could be
removed from play and cooled down before reaching temperatures
that are “anywhere near a heatstroke.” J.A. 311. Dr. Casa
recommended that Class be cooled down if he reached an internal
temperature of 103 degrees Fahrenheit, but noted that this
threshold was very conservative. Dr. Kindschi did not point to
any medical evidence supporting her decision to completely
discount the conclusion of Dr. Casa, a leading heat-illness
expert.
The majority opinion also notes that dozens of athletes
have died from heatstroke, and cites this fact as support for
Dr. Kindschi’s conclusion that Class would not be safe. Ante,
at 34. However, there is no evidence in the record that anyone
has ever suffered heatstroke while being monitored with the
CorTemp system, which is used by numerous universities and NFL
teams. As Dr. Casa testified: “[i]f he’s using the system,
actually, [Class] would be the safest person on the football
field because he’s the one person who then could not overheat
during practice.” J.A. 310. Without any medical evidence
supporting her opinion, the record does not compel the
conclusion that Dr. Kindschi’s opinion on the effectiveness of
the CorTemp system was objectively reasonable.
52
In pointing out the majority opinion’s mischaracterizations
of the record, I do not mean to suggest that Dr. Kindschi’s
opinion was not objectively reasonable. Perhaps it was. I
merely underscore that the record is less clear than the
majority opinion portrays and does not compel the conclusion
that Dr. Kindschi’s determination should be upheld. Therefore,
the proper remedy is to vacate and remand this case to the
district court for consideration of whether Dr. Kindschi’s
decision was individualized, objectively reasonable, and
supported by competent medical evidence.
III.
In sum, the majority opinion aptly recognizes that Gavin
Class is “a courageous man of substantial character, which is
much to be admired.” Ante, at 37. And I agree with the
majority opinion that the district court failed to apply the
proper standard when assessing Dr. Kindschi’s decision.
But the majority opinion places too great an emphasis on
Dr. Kindschi’s subjective intent, and not enough emphasis on the
objective reasonableness of her medical opinion. And, the
majority opinion makes its own factual findings instead of
remanding to allow the district court to make factual findings
under the correct standard in the first instance. For those
reasons, I believe Gavin Class is entitled to more than being
53
“proud to tell his story.” Ante, at 37. Accordingly, I
respectfully concur in part and dissent in part.
54
Gavin Class v. Towson University
Court: Court of Appeals for the Fourth Circuit
Date filed: 2015-11-13
Citations: 806 F.3d 236
Copy CitationsCombined Opinion